Recently, a strata lot owner took on a strata corporation for the unfair treatment against the owner where a strata lien and fines were levied against the owner and the owner won.
A long-standing dispute between owner and strata corporation came to a head when the owner residing in the strata lot passed away and the joint-owner daughter took over the strata lot. The strata corporation had filed a lien against the strata lot and was demanding that the owner pay almost $30,000 to the strata corporation before the lien would be removed. Without the lien removed, the owner could not sell the strata lot. The $30,000 was for strata fees, special levies, fines and interest with some amounts dating back to 1998.
We decided to file a claim in the Supreme Court of BC claiming that the lien was invalid because it included non-lienable amounts (fines) and included amounts from 2003 and earlier when a previous lien had been discharged in December of 2003 which included those amounts.
The Chambers Judge at the Supreme Court of BC agreed that the lien filed by the Strata Corporation was invalid. When the strata corporation removed the lien in 2003, it had certified that all lienable amounts had been received. Therefore, the strata corporation could not place a new lien in 2008 for amounts that were elimination by the removal of the first lien in 2003. The strata corporation was ordered to remove the 2008 lien at its own cost and was not able to recover any of its legal fees for the lien.
However, the Chambers Judge did not agree that the fines were invalid. The Chambers Judge had found that the owner had sufficient notice of the fines such that the strata corporation had complied with the requirements of section 135 of the Strata Property Act. You can read the full BC Supreme Court decision here.
As the fines were significant in amount, over $8,000, we decided to appeal the Chambers Judge’s decision to the BC Court of Appeal on the basis that there was no evidence that the strata corporation properly followed section 135 of the Strata Property Act, which requires a strata corporation to provide the owner notice of an alleged bylaw breach before fining the owner for the breach.
According to certain account statements issued by the strata corporation, the owner had been assessed a monthly fine from 2003 to 2013. The strata corporation had provided evidence that it had sent numerous statements to the owner which statements showed fines had been assessed. All of those statements were attached to letters from the strata corporation demanding that the owner pay the arrears to the strata corporation.
However, in the evidence provided by the strata corporation, the strata corporation could not show any letters that it had sent to the owner or her mother before any of the fines were assessed and could not provide any letters that warned the owner or her mother would be fined for failure to pay the strata fees or special levies.
As a result, the Court of Appeal noted that the strata corporation had failed to comply with section 135 before imposing the fines. The Court of Appeal then declared that all fines were invalid and were set aside.
The Court of Appeal noted that there was no evidence before the Chambers Judge upon which a reasonable finding could be based that the strata corporation had complied with section 135 before imposing the fines: the fines were imposed before any notice was provided.
The Court of Appeal further noted that the correspondence put into evidence by the strata corporation failed to call the owner’s attention to an allegation by the strata corporation that the bylaws were being contravened as a consequence of the failure of the owner to pay the increase in strata fees. In addition, the strata corporation failed to give the owner any notice that it was contemplating the imposition of a fine for non-payment of monthly strata fees, let alone any opportunity to be heard in response to the alleged contravention. Further, a letter from the strata corporation advising that fines would be imposed for failure to pay fees does not correct the past failure to provide the owner with the required notice before the fines and this letter does not comply with section 135 such that the strata corporation can impose future fines.
As a result of the strata corporation failing to prove that it had complied with section 135 of the Strata Property Act, the Court of Appeal declared all fines to be significantly unfair, were invalid and were set aside. You can read the whole decision here.
Labels: BC, Court of Appeal, fines, invalid fines, lack of notice, Strata Corporation, unfairness